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Children: Private Law Update (February 2011)

Alex Verdan QC of 4 Paper Buildings reviews important recent developments relating to private children law

Alex Verdan QC, 4 Paper Buildings

Alex Verdan QC, 4 Paper Buildings

In this review I will focus on recent case law in respect of the following topics: 

Section 91(14) orders 
H (A Child) [2010] EWCA 1296
This was an application for permission to appeal against the making of a 91(14) order in residence and contact proceedings involving an 11 year old girl. There had been long running litigation between the parties going back to a fact finding in 2007 at which the mother's allegations against the father had been rejected.  At the hearing which was the subject of the appeal the judge made a residence order to the father and the mother's application for contact was dismissed. At the same time the trial judge made a s.91(14) order on the application of the children's guardian. The mother appealed on the basis that the guardian did not have the ability to make such an application, that the judge had misdirected himself and that the Judge had failed to put a time limit on the order.

The Court of Appeal held that: 

Permission to appeal was granted limited to the duration of the order.

K (Children) [2010] EWCA Civ 1365
This was a mother's appeal to the Court of Appeal from a decision of the circuit judge to allow an appeal by the father against dismissal of his application for contact and the making, by a district judge, of a s.91(14) order for a period of one year. The district judge dismissed the application on the basis that it had no prospect of success and made a s.91(14) order for a period of one year although there was no formal application before the court. The circuit judge allowed the appeal but stated that though the first instance decision was unappealable he would allow the appeal on welfare grounds. 

The Court of Appeal considered that the district judge had been plainly wrong and that, despite his indication to the contrary, the circuit judge must also have thought so. The appeal was therefore dismissed.

The President said:

'There will, of course, be appeals against discretionary decisions of district Judges in which the circuit Judge may disagree with the district Judge's exercise of his discretion but nonetheless respect it and dismiss the appeal because the exercise of discretion by the district Judge falls within the well established ambit of reasonable disagreement and is not plainly wrong. That is not, however, this case. Here, the Judge plainly thought the orders made by the district Judge were plainly wrong. In my judgment he should have said so, however much he sympathised with her.'

Shared residence order
T v T
[2010] EWCA Civ 1366
Appeal by the mother of two children and her civil partner against a shared residence order made in favour of the mother and the children's father. The appellants sought the substitution of a joint residence order in their favour with a contact order to the father. The appeal was refused.

The appellants were a female couple who had responded to an advert from the respondent in which he expressed a wish to become a father. Two children, aged 7 and 10 at the time of the hearing, were subsequently born to one of the appellants and the respondent. The children had lived primarily with the appellants but had maintained contact with the respondent throughout their lives. The relationship between the appellants and the father had deteriorated and a contested hearing ensued. The judge at first instance made a shared residence order in favour of the biological mother and the father with the children residing with the father every other weekend and one night in the intervening week. The biological mother's partner was given PR, but her application for joint residence with the mother was refused.

The Court of Appeal did not accept the appellants' criticisms of the judgment. Black LJ stated it was not incumbent upon on a judge to make findings on every issue that is presented for determination during a hearing, but rather simply those factual issues that have implications for the decisions to be taken. She made clear that the court below had the benefit of hearing oral evidence and that shared residence order was increasingly occurring in such cases. However she added that Mostyn J went too far in Re AR (A Child: Relocation) [2010] EWHC 1346 (Fam), when he said that a joint or shared residence order "is nowadays the rule rather than the exception even where the quantum of care undertaken by each parent is decidedly unequal". 

However, prior to the appeal hearing the father had indicated that he would agree to an order granting residence to all three adults, which the appellants sought but only as a secondary option. In view of the father's agreement on this point and the fact that if the biological mother died, there was no bar to the father seeking to have the children live with him full time, the Court of Appeal held that it would be in the children's best interests for there to be a residence order in favour of all three adults. The appeal was dismissed on all other points.

W (A Child) [2010] EWCA Civ 1449
Appeal brought by the father against an order of a circuit judge in relation to contact and the making of a s.91(14) order. The case involved a ten year old boy who had been the subject of a protracted contact dispute. The child was a party and a representative from NYAS acted as the children's guardian in the proceedings. The proceedings culminated in an order for direct contact four times a year in the presence of the mother, indirect contact twice a week and a 91(14) against the father for a year. During the course of the hearing the judge had a telephone conversation with the guardian in the privacy of his room and then related the nature of the conversation to the parties in court.

It was held that judge should not have sought additional assistance from the guardian other than in the presence of the parties. The unfairness of this private conversation was amplified by the judge's refusal to let the father cross-examine the guardian on the most recent report. The Court of Appeal allowed the appeal, set aside the judge's orders and returned the case for hearing in relation to contact and ancillary matters by a different judge in the area of the country where the parents reside.

Leave to remove
C (A Child)
[2011] EWCA Civ 72
Mother's application for permission to appeal the refusal of leave to remove concerning a 7 year old girl. The mother was seeking permission to move to Australia with her daughter and new husband. The mother proposed that the father would have two weeks of contact in England in the summer and two weeks during the Christmas holidays. The judge found at first instance that the mother had a strong dislike of the father that bordered on hatred and that on a holiday to Australia the mother had not promoted contact as often as might reasonably be expected. It was consequently found that although the mother's application was not motivated by a desire to thwart the father's contact, the move to Australia would result in the child losing the relationship with her father. Cafcass stated that although the case was finely balanced, in their opinion leave to remove should be granted. The judge at first instance departed from that recommendation on the basis of her finding that the child would lose her relationship with her father if the move to Australia took place and it would therefore not be in her best interests.

The Court of Appeal found no reason to interfere with that finding and permission to appeal was therefore refused.

Intractable contact dispute
[2011] EWHC 76
Intractable contact dispute involving two girls aged 10 and 12 who lived with their mother and had no direct contact with the father. The children were represented by NYAS in the proceedings. Two applications were before the President: firstly the paternal grandparents' application for contact and secondly the mother's application to commit the father for contempt of court for breaching the order banning him from the county of Wiltshire save for specified purposes.

The father did not attend but the President found the father to have been in breach of the orders banning him from entering or attempting to enter or approach the children's school or any event, activity or venue where either child might be. Sentencing was adjourned for the father to attend and offer mitigation.

In relation to the paternal grandparents' application for contact with the children, the judge found that the crux of the problem was the grandparents' wholesale support for the father and their consequential hostility to the children's mother. However the judge ordered that the children should have one contact supervised by NYAS (if NYAS thought it appropriate) and that following the supervised contact the matter should return to court for a review.

Surrogacy agreements
CW v NT and another
[2011] EWHC 33
A couple, Mr and Mrs W, had entered into an informal surrogacy agreement with the mother of the child. They agreed that the mother would be inseminated by the father and the child would be handed at birth to Mr and Mrs W. The mother became pregnant and received several thousand pounds from Mr and Mrs W. However during the pregnancy the mother changed her mind and refused to hand over the baby after the birth. Mr W applied for a residence order.

The judge heard from Mr and Mrs W and the mother and concluded that they were all to a certain degree unreliable witnesses. However despite criticism of the mother for some deceitful behaviour and dishonest evidence, the judge found that she had not set out the deceive Mr and Mrs W; she had made the agreement in good faith but had changed her mind during the course of the pregnancy. The guardian also gave evidence and reported that the baby had good attachment to the mother and that she was thriving in her mother's care.
In accordance with Re P (Surrogacy: Residence) the judge asked himself in which home the child was most likely to mature into a happy and balanced adult and achieve her fullest potential. He stated that the court must not attach undue weight to the fact that the mother originally promised to give up the baby. In some cases such a promise may indicate a lack of commitment to the child or a question over the mother's capacity to care for her, but in this case the mother had genuinely changed her mind.

The judge concluded that he would make a residence order to the mother with contact to the father for the following reasons: